Citation NR: 9742046
Decision Date: 12/19/97 Archive Date: 12/30/97
DOCKET NO. 97-26 571 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to service connection for right knee disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Harold A. Beach, Counsel
INTRODUCTION
The veteran had active duty for training from January through
July 1957 and served on active duty from July 1957 through
August 1960.
This matter comes before the Board of Veterans’ Appeals
(Board or BVA) as a result of a decision rendered at the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky. In November 1996, the RO denied
entitlement to service connection for the residuals of a
right knee injury. The veteran disagreed with that decision,
and this appeal ensued.
REMAND
In August 1966, the RO obtained the veteran’s service medical
records in association with a claim not at issue here. They
showed that in April and May 1958, he complained of right
knee problems.
In May 1996, the RO attempted to get additional service
medical records in conjunction with the present claim;
however, it was informed that those records were apparently
destroyed in a 1973 fire at the National Personnel Records
Center (NPRC) in St. Louis, Missouri. In such situations, VA
has a heightened duty to assist the veteran in the
development of his claim. That duty includes the search for
alternate medical records as well as a heightened obligation
on the part of the Board to explain its findings and
conclusions and carefully consider the benefit-of-the-doubt
rule. See Cuevas v. Principi, 3 Vet.App. 542, 548 (1992);
O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991).
In November 1996, when the RO denied the veteran’s claim of
entitlement to service connection for right knee disability,
it did so on the basis that the veteran had not submitted a
well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). In
his appeal (VA Form 9, dated in August 1997), he noted that
medical records in support of his claim were attached. If
such records were submitted in conjunction with the appeal,
they are not now in the claims folder. They could, however,
well be relevant to the veteran’s claim.
In light of the foregoing, the Board is of the opinion that
additional development of the record is necessary prior to
further appellate consideration. Accordingly, the case is
remanded for the following actions:
1. Through official channels and by a
request to the veteran, the RO should
ascertain the units to which the veteran
was assigned during service. It should
then attempt to reconstruct additional
service medical history for the veteran
by requesting that the NPRC conduct a
thorough search of alternate sources of
information, including, but not limited
to, morning reports and daily sick
reports. Any records so obtained must be
associated with the claims folder.
Failures to respond or negative replies
to any request should be noted in writing
and also associated with the claims
folder.
2. The RO should contact the veteran and
request the names, addresses, and dates
of treatment or examination, of all
health care providers who have treated or
examined him since service for right knee
disability. After obtaining any necessary
authorization, the RO should request
copies of the records of such treatment
or examinations not currently on file
directly from the providers. The RO
should also request that the veteran
provide any such records in his
possession, including, but not limited,
to those which he reportedly attached to
his appeal (VA Form 9, dated in November
1996). Any records so obtained must be
associated with the claims folder.
Failures to respond or negative replies
to any request should be noted in writing
and also associated with the claims
folder.
3. When the foregoing actions are
completed, and, if additional evidence is
obtained showing right knee disability,
the RO should schedule the veteran for an
orthopedic examination. The purpose of
the examination is to determine the
nature, etiology, and extent of any right
knee disability found to be present. All
indicated tests and studies should be
performed, including, but not limited to,
X-rays and range of motion studies. All
ranges of motion must be reported
numerically. Any indicated consultations
should also be scheduled. Prior to the
examination, the claims folder must be
made available to the examiner so that
the relevant medical history may be
reviewed. Should right knee disability
be found, the examiner should render an
opinion as to whether it is at least as
likely as not related to any knee
problems in service, including those
reported in April and May 1958. That
opinion must be supported by clear and
concise rationale, with citation to
medical principles involved and their
application to the facts of the veteran’s
case.
4. When the requested actions have been
completed, the RO should undertake any
other indicated development and then
readjudicate the appeal of entitlement to
service connection for right knee
disability. If the benefits sought on
appeal are not granted to the veteran’s
satisfaction, he and his representative
must be furnished a Supplemental
Statement of the Case and afforded an
opportunity to respond. Thereafter, if
otherwise in order, the case should be
returned to the Board for further
appellate action.
By this remand, the Board intimates no opinion as to the
final disposition of the issue. The purposes of the remand
are to develop the evidence and to ensure compliance with due
process of law. The veteran need take no action until he is
notified.
U. R. POWELL
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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